Prosecutors move to dismiss charges against McDonnells

Posted Thu, September 8th, 2016 4:31 pm by Amy Howe

Less than three months after the Supreme Court unanimously struck down his conviction on federal corruption charges, today the Department of Justice announced that it would not seek to retry either former Virginia governor Bob McDonnell or his wife, Maureen, who was convicted on similar charges. In a terse three-sentence statement, the Department of Justice indicated only that, after “carefully considering the Supreme Court’s recent decision and the principles of federal prosecution, we have made the decision not to pursue the case” against the McDonnells.

In September 2014, McDonnell – once regarded as a rising star in the Republican Party – was convicted and sentenced to two years in prison. Prosecutors alleged, and the jury agreed, that McDonnell had violated federal laws making it a felony to agree to take “official action” in exchange for money, campaign donations, or anything else of value when he took thousands of dollars’ worth of loans and luxury goods from Jonnie Williams, a Virginia businessman who wanted to promote his company’s nutritional supplement.

The Justices agreed to allow McDonnell to delay his prison sentence while his case was under review, and in June of this year they threw out his conviction altogether. Just setting up a meeting with state officials, as McDonnell did for Williams, is not a crime – notwithstanding the loans and gifts to McDonnell from Williams. While not condoning McDonnell’s conduct, the Justices expressed concern that a contrary rule could leave the door open for “overzealous” prosecutions.

Today’s announcement likely signals the end of the McDonnells’ legal saga. The broader impact of the Court’s ruling in McDonnell’s case – especially to what extent it prompts the government to forgo future prosecutions – may be harder (and take longer) to discern.

Current Relists

Conference of November 16, 2018

Andersen v. Planned Parenthood of Kansas and Mid-Missouri Whether the provisions of the Medicaid Act that require participating states to include in their plans the ability of eligible individuals to obtain services from any “qualified” provider, 42 U.S.C. § 1396a(a)(23), but grant states broad authority to exclude providers for violating state or federal requirements, 42 U.S.C. § 1396a(p), indicate that Congress clearly and unambiguously intended to create an implied private right of action to challenge a state’s determination that a provider is not “qualified” under the applicable state regulations.

City of Escondido, California v. Emmons (1) Whether the U.S. Court of Appeals for the 9th Circuit erred in denying the officers qualified immunity by considering clearly established law at too high a level of generality rather than giving particularized consideration to the facts and circumstances of this case; (2) whether the lower court erred in denying the officers qualified immunity by relying on a single decision, published after the event in question, to support its conclusion that qualified immunity is not available; and (3) whether the lower court erred in failing or refusing to decide whether the subject arrest was without probable cause or subject to qualified immunity.

Fleck v. Wetch (1) Whether it violates the First Amendment for state law to presume that the petitioner consents to subsidizing non-chargeable speech by the group he is compelled to fund (an “opt-out” rule), as opposed to an “opt-in” rule whereby the petitioner must affirmatively consent to subsidizing such speech; and (2) whether Keller v. State Bar of California and Lathrop v. Donohue should be overruled insofar as they permit the state to force the petitioner to join a trade association he opposes as a condition of earning a living in his chosen profession.

Major Cases

In re Department of CommerceWhether, in an action seeking to set aside agency action under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker—including by compelling the testimony of high-ranking Executive Branch officials—when there is no evidence that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis.

The American Legion v. American Humanist Association(1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

Gamble v. United StatesWhether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

Timbs v. IndianaWhether the Eighth Amendment’s excessive fines clause is incorporated against the states under the Fourteenth Amendment.

Apple Inc. v. PepperWhether consumers may sue anyone who delivers goods to them for antitrust damages, even when they seek damages based on prices set by third parties who would be the immediate victims of the alleged offense.